Claim Number: FA0912001298511
Complainant is Victoria's
Secret Stores Brand Management, Inc. (“Complainant”), represented by Melise R. Blakeslee, of Sequel Technology & IP Law, LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <victoriassecretfloripa.com>, registered with Godaddy.com, Inc.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 10, 2009; the National Arbitration Forum received a hard copy of the Complaint on December 11, 2009.
On December 11, 2009, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <victoriassecretfloripa.com> domain name is registered with Godaddy.com, Inc. and that Respondent is the current registrant of the name. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On December 11, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 31, 2009 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@victoriassecretfloripa.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 7, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s
<victoriassecretfloripa.com> domain name is confusingly similar to
Complainant’s
2. Respondent does not have any rights or legitimate interests in the <victoriassecretfloripa.com> domain name.
3. Respondent registered and used the <victoriassecretfloripa.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Victoria’s Secret Stores Brand Management,
Inc., sells women’s lingerie and other apparel, personal care and beauty
products, swimwear, outerwear, and gift cards.
Complainant has offered these products since June 12, 1977. Complainant operates over 1,000 stores
selling Complainant’s products and bearing Complainant’s
Respondent registered the <victoriassecretfloripa.com>
domain name on August 22, 2008. Respondent
attempts to pass itself off as Complainant on the website resolving from the
disputed domain name. The resolving
website prominently displays Complainant’s
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
Complainant has registered the
Complainant claims Respondent’s <victoriassecretfloripa.com>
domain name is confusingly similar to Complainant’s
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent lacks rights and legitimate interests in the <victoriassecretfloripa.com> domain name. Past panels have found that when a complainant makes a prima facie case in support of its allegations, the burden shifts to the respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has made a prima facie case. Due to the Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the <victoriassecretfloripa.com> domain name. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c). See Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb. Forum Jan. 4, 2008) (“It is well established that, once a complainant has made out a prima facie case in support of its allegations, the burden shifts to respondent to show that it does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.”); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence).
Complainant asserts that Respondent is not authorized to use
the
Respondent uses the <victoriassecretfloripa.com>
domain name to resolve to a website attempting to pass itself off as
Complainant. The resolving website utilizes
Complainant’s
Therefore, the Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent’s <victoriassecretfloripa.com>
domain name resolves to a website selling Complainant’s women’s lingerie and
other apparel, personal care and beauty, swimwear, outerwear, and gift card
products without Complainant’s authorization.
The resolving website also displays Complainant’s different
The Panel infers that Respondent commercially profits from the sale of Complainant’s products on the website resolving from the disputed domain name. Internet users may become confused as to Complainant’s sponsorship and affiliation with the disputed domain name, resolving website, and featured lingerie and other apparel, personal care and beauty, swimwear, outerwear, and gift card products. Respondent likely attempts to profit from that confusion. The Panel concludes Respondent’s use of the disputed domain name constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See World Wrestling Fed’n Entm’t, Inc. v. Ringside Collectibles, D2000-1306 (WIPO Jan. 24, 2001) (concluding that the respondent registered and used the <wwfauction.com> domain name in bad faith because the name resolved to a commercial website that the complainant’s customers were likely to confuse with the source of the complainant’s products, especially because of the respondent’s prominent use of the complainant’s logo on the site); see also Fossil Inc. v. NAS, FA 92525 (Nat. Arb. Forum Feb. 23, 2000) (finding that the respondent acted in bad faith by registering the <fossilwatch.com> domain name and using it to sell various watch brands where the respondent was not authorized to sell the complainant’s goods).
The Panel finds Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <victoriassecretfloripa.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: January 20, 2010
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